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FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022
NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024
STATE OF NEW YORK
SUPREME COURT COUNTY OF NASSAU
CII PASSING LANE, LP,
Plaintiff,
-against- Hon. James P. McCormack
WILLIAM PENN LIFE INSURANCE COMPANY OF ATTORNEY AFFIRMATION
NEW YORK,
Defendant. Index No. 602940/2022
WILLIAM PENN LIFE INSURANCE COMPANY OF
NEW YORK,
Defendant and Interpleader
Plaintiff,
-against-
GEORGE T. BURKE, ANN CACCIA, MICHELLE
GINSBERG, ROBERT MCGRATH, and
WILMINGTON TRUST N.A., CII PASSING LANE,
LP, LINDA DALLER, ZACHARY GINSBERG,
KEVIN GINSBERG, AND JOSHUA GINSBERG,
Interpleader Defendants.
KELLY S. FOSS, an attorney duly admitted to practice law before the Courts of this State,
affirms the following under penalty of perjury:
1. I am an attorney and a member of the firm Harris Beach PLLC, attorneys for
Plaintiff CII Passing Lane, LP (“Passing Lane”), which is also an Interpleader Defendant, as well
as for Interpleader Defendant Wilmington Trust, N.A. (“Wilmington Trust”). As such, I am fully
familiar with the facts and circumstances of this case.
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2. I submit this affirmation in support of Passing Lane and Wilmington Trust’s motion
for severance and entry of judgment pursuant to CPLR 603, 3212(e)(1), and 5012. As discussed
further below, counsel for William Penn Life Insurance Company of New York (“William Penn”)
has repeatedly stated that William Penn will not pay the damages awarded by this Court on partial
summary judgment until such award is a reduced to a judgment. Accordingly, Passing Lane and
Wilmington Trust bring this motion to sever the relief that has been fully adjudicated by this Court
so that a judgment can be entered for the same.
3. The purpose of this affirmation is to supply facts and documents relevant to this
motion. Pursuant to CPLR 2214(c), all documents identified by NYSCEF docket number are
hereby incorporated by reference. The legal arguments of Passing Lane and Wilmington Trust are
set forth in the accompanying joint memoranda of law, and will not be repeated here.
Procedural History – Relevant Pleadings
4. Passing Lane commenced this action on March 9, 2022, seeking to recover the
proceeds from the policy insuring the life of Mitchell Hersh (the “Policy”) as well as attorneys’
fees as a result of William Penn’s breach of the Policy by failing to timely pay out the Policy
proceeds to the record beneficiary (Doc. 1). In its complaint, Passing Lane also asserted alternative
causes of action, including promissory estoppel, negligent misrepresentation, and equitable
estoppel based upon William Penn’s prior representations that the Policy was not the subject of
any assignments, and declaratory judgment and unjust enrichment (id.).
5. After William Penn answered (Doc. 3), Passing Lane filed an amended complaint
as of right (Doc. 5).
6. On June 2, 2022, William Penn filed its Answer to Passing Lane’s Amended
Complaint (Doc. 6).
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7. Approximately six months later, on December 9, 2022, William Penn filed, under
the same index number, a Defensive Interpleader Complaint (Doc. 52). Two months later, on
February 7, 2023, William Penn filed an Amended Defensive Interpleader Complaint, naming
multiple Interpleader Defendants, including both Passing Lane and Wilmington Trust (Docs. 77,
78, 79, 80, 81, 82, 83, 84, and 85).
8. On February 27, 2023, Passing Lane and Wilmington Trust filed their Answers to
the Amended Interpleader Complaint (Docs. 91, 94).
9. In its Answer, Passing Lane also asserted a counterclaim against William Penn
reasserting, for the avoidance of doubt, Passing Lane’s demand for consequential damages based
upon William Penn’s failure to timely pay out the Policy proceeds (Doc. 91).
10. Passing Lane further asserted a counterclaim against William Penn and a crossclaim
against all interpleader defendants seeking a declaration that Passing Lane was entitled to the
Policy proceeds and a protected purchaser under Article 8 of the Uniform Commercial Code
(“UCC”) (Docs. 91, 92, 93). Passing Lane also asserted an affirmative defense under Article 8 of
the UCC (Doc. 91).
11. In its Answer, Wilmington Trust asserted an affirmative defense under Article 8 of
the UCC (Doc. 94).
12. Interpleader Defendants Michelle Ginsberg, Zachary Ginsberg, Kevin Ginsberg,
and Joshua Ginsberg (the “Ginsbergs”) filed an Answer to the Amended Interpleader Complaint,
dated February 10, 2023, and asserted counterclaims against William Penn, seeking a portion of
the Policy proceeds under a theory of breach of contract as well as a declaration that the Ginsbergs
have superior rights under the Policy and are therefore entitled to payment of Policy proceeds in
the amount of $200,000.00 (Doc. 90).
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13. Interpleader Defendants George Burke and Linda Daller (“Burke and Daller”) filed
an Answer to the Amended Interpleader Complaint, dated February 27, 2023, and asserted
counterclaims against William Penn seeking a portion of the Policy proceeds under a theory of
breach of contract, a declaration that Burke and Daller have superior rights under the Policy and
Burke and Daller are therefore entitled to payment of Policy proceeds in the amount of
$410,000.00, and alternatively seeking monetary damages against William Penn for negligence in
connection with its handling of Burke’s collateral assignment (Doc. 96).
14. Interpleader Defendant Robert McGrath (“McGrath”) filed an Answer to the
Amended Interpleader Complaint, dated March 14, 2023, and asserted counterclaims against
William Penn and crossclaims against Passing Lane seeking a portion of the Policy proceeds under
a theory of breach of contract, a declaration that McGrath is entitled to payment of policy proceeds
in the amount of $225,000.00, and alternatively seeking monetary damages from William Penn
under a theory of negligence (Doc. 102).
15. Interpleader Defendant Ann Caccia was served (Doc. 108), but did not appear.
16. Passing Lane and Wilmington Trust filed replies to each of the counterclaims and
cross claims asserted by the other Interpleader Defendants (Docs. 97, 98, 99, 100, 103, 104, 105,
106, 111, 112, 113, 114). In those replies, both Passing Lane and Wilmington Trust asserted
(among other things) affirmative defenses under Article 8 of the UCC.
Procedural History – Summary Judgment
17. Passing Lane moved for partial summary judgment pursuant to CPLR 3212 and for
default judgment against Ann Caccia pursuant to CPLR 3215 (Docs. 148, 149, 150, 151, 152, 153,
154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172,
173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, and 186). On its motion, Passing
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Lane sought, in pertinent part, summary judgment on the portion of its first cause of action for
breach of contract and damages in the amount of $862,500.00, plus 1.5% interest running on that
principal amount through the date of decision, plus $31,260.86 in interest still due and owing on
William Penn’s partial payment of $2,137,500.00 made on January 6, 2023 (see id.). Passing Lane
further sought on its motion for partial summary judgment a declaration that Passing Lane (1) is a
protected purchaser under Article 8 of the UCC; (2) acquired its security entitlement in the Policy
free of any adverse and/or competing claims to the Policy or its proceeds; and (3) is entitled to
recover, through its securities intermediary, the remainder of the Policy proceeds free of adverse
claims (see id.). Passing Lane also sought dismissal of the aforementioned counterclaims and
crossclaims asserted by the Ginsbergs, Burke and Daller, and McGrath to the extent those
Interpleader Defendants sought to assert a right to the Policy proceeds (see id.).
18. Wilmington Trust moved for partial summary judgment pursuant to CPLR 3212
and default judgment against Ann Caccia pursuant to CPLR 3215 (see Docs. 149, 150, 151, 152,
153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171,
172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 186, 187, 188, and 189). On its
motion, Wilmington Trust sought a declaration that it is a protected purchaser and protected
securities intermediary under Article 8 of the UCC, and that Wilmington Trust therefore
(1) received the Policy free from adverse claims; and (2) is protected against adverse claims with
respect to any Policy proceeds it received or receives in its role as securities intermediary (see id.).
Wilmington Trust also sought dismissal of the counterclaims and crossclaims asserted by the
Ginsbergs, Burke and Daller, and McGrath insofar as those claimants sought to assert a right to
the Policy proceeds (see id.).
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19. Neither Passing Lane’s nor Wilmington Trust’s motions for partial summary
judgment sought adjudication of any other claims asserted by the Interpleader Defendants against
William Penn (Doc. 186 [noting “the other Interpleader Defendants [would be free] to pursue any
remaining claims for damages—e.g., for negligent processing of their collateral assignments—
against William Penn” following the adjudication of Passing Lane’s motion for partial summary
judgment]; 189 [same for Wilmington Trust’s motion for partial summary judgment]). Nor did
Passing Lane seek on its motion for partial summary judgment resolution of its demand for
consequential damages for bad faith delay, expressly leaving that issue along with any other claims
which were not the subject of the motion to be decided at trial (Doc. 149, n. 1).
20. William Penn opposed the respective motions filed by Passing Lane and
Wilmington Trust (Docs. 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 209, and 210).
William Penn did not file any summary judgment motion by the deadline for dispositive motions
in this action.
21. Burke and Daller opposed the respective motions filed by Passing Lane and
Wilmington Trust, and also cross-moved for summary judgment (Docs. 203 and 208). In their
cross-motion, Burke and Daller sought a declaration that (1) the sale of the Policy on the secondary
market was void ab initio; and (2) Burke and Daller were entitled to $410,000.00 in Policy
proceeds (see id.). Burke and Daller also sought dismissal of Passing Lane’s amended complaint
(see id.).
22. McGrath opposed the respective motions filed by Passing Lane and Wilmington
Trust (Docs. 204 and 205). McGrath did not file any summary judgment motion by the deadline
for dispositive motions in this action.
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23. The Ginsbergs opposed the respective motions filed by Passing Lane and
Wilmington Trust (Doc. 207). The Ginsbergs did not file any summary judgment motion by the
deadline for dispositive motions in this action.
24. Passing Lane filed reply papers in further support of its motion for summary
judgment and default judgment and in opposition to the cross-motion filed by Burke and Daller
(Docs. 211 and 212).
25. Wilmington Trust filed reply papers in further support of its motion for summary
judgment and default judgment and in opposition to the cross-motion filed by Burke and Daller
(Docs. 211, 212, and 213).
26. Burke and Daller filed reply papers in further support of their cross-motion for
summary judgment (Docs. 214 and 215).
27. This Court issued a Decision and Order dated February 16, 2024 and entered on
February 20, 2024 (see Doc. 216), granting in its entirety Passing Lane’s motion (Motion Seq. 3),
granting in its entirety Wilmington Trust’s motion (Motion Seq. 4), and denying in its entirety
Daller and Burke’s cross motion (Motion Seq. 5). Specifically, this Court:
a. Granted Passing Lane summary judgment on its first cause of action against
William Penn for breach of contract and awarded compensatory damages in the
amount of $862,500.00, plus 1.5% interest, plus $31,260.86 in interest due and
owing on the January 6, 2023 partial payment1;
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The total amount owed is $934,900.48, which is comprised of the following: $862,500.00 (unpaid portion of the
Policy proceeds), plus $41,139.62 (1.5% interest running from June 8, 2021, the date of the insured’s death, to
February 20, 2024, the date the summary judgment decision was entered), plus $31,260.86 (1.5% interest due and
owing on William Penn’s partial payment of 2,137,500.00 made on January 6, 2023). To be clear, this amount only
encapsulates compensatory damages stemming from Passing Lane’s breach of contract claim. Passing Lane did not
move for summary judgement on, and specifically reserved the right to seek, consequential damages, under Passing
Lane’s breach of contract claim for William Penn’s bad faith delay in paying the undisputed portion of the policy
proceeds and commencing the interpleader action.
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b. Found that Passing Lane is entitled to a declaratory judgment that it is a
protected purchaser under Article 8 of the UCC;
c. Found that Passing Lane is entitled to a declaratory judgment that it acquired
its security entitlement in the Policy free of any adverse and/or competing
claims to the Policy or its proceeds;
d. Found that Passing Lane is entitled to a declaratory judgment that it is entitled
to recover, through its securities intermediary, the remainder of the Policy
proceeds free of adverse claims;
e. Found that Wilmington Trust is entitled to a declaratory judgment that it is a
protected purchaser and protected securities intermediary under Article 8 of the
UCC;
f. Found that Wilmington Trust is entitled to a declaratory judgment that it
received the Policy free from adverse claims;
g. Found that Wilmington Trust is entitled to a declaratory judgment that it is
protected against adverse claims with respect to any Policy proceeds it received
or receives in its role as securities intermediary;
h. Dismissed the Ginsbergs’ counterclaim against William Penn seeking a portion
of the Policy proceeds under a theory of breach of contract;
i. Dismissed the Ginsberg’s counterclaim seeking a declaration that the Ginsbergs
have superior rights under the Policy and are therefore entitled to a portion of
the Policy proceeds;
j. Dismissed Burke and Daller’s counterclaim against William Penn seeking a
portion of the Policy proceeds under a theory of breach of contract;
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k. Dismissed Burke and Daller’s counterclaim seeking a declaration that Burke
and Daller have superior rights under the Policy and Burke and Daller are
therefore entitled to a portion of the Policy proceeds;
l. Dismissed McGrath’s counterclaim against William Penn and crossclaim
against Passing Lane seeking a portion of the Policy proceeds under a theory of
breach of contract;
m. Dismissed McGrath’s counterclaim seeking a declaration that McGrath is
entitled a portion of the Policy proceeds; and
n. Granted default judgment against Ann Caccia.
(Docs. 148 and 187 [Passing Lane’s and Wilmington Trust’s respective notices of motion, setting
forth specific relief sought—and ultimately granted by this Court—on partial summary
judgment]).
28. Following this Court’s decision and order on partial summary judgment, William
Penn and each of the adverse claimants – Burke and Daller, McGrath, and the Ginsbergs – filed
notices of appeal (Docs. 224, 225, 226, and 227).
29. Since issuance of this Court’s decision and order awarding partial summary
judgment, counsel for William Penn has communicated to me on multiple occasions that William
Penn will not pay the compensatory damages awarded by this Court until such damages award is
reduced to a judgment. Consistent with the position it has taken, within its notice of appeal,
William Penn states that “Plaintiffs have not submitted a judgment to address the monetary and
non monetary provisions of the order” (Doc. 226, p. 8). Counsel for William Penn has also
repeatedly stated, over the past few months, its view that the decision and order finally adjudicated
all claims and defenses in this matter, and has insisted that Passing Lane reduce the order to a
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judgment. Given that this Court granted Passing Lane and Wilmington Trust’s motions for partial
summary judgment, Passing Lane and Wilmington Trust disagree that the decision and order
adjudicated all claims in the action.
30. Accordingly, for the avoidance of doubt, and as urged by William Penn, Passing
Lane and Wilmington Trust bring this motion for severance and to reduce to judgment those issues
which this Court has already decided, while leaving the remaining issues for trial.
31. For the reasons set forth above and in the accompanying memorandum of law,
Passing Lane and Wilmington Trust respectfully requests that this Court grant the relief requested
in the notice of motion.
32. For the Court’s convenience, attached as Exhibit 1 is a proposed order of severance.
Kelly S. Foss
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CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. § 202.8-b
The filing attorney hereby certifies, pursuant to 22 N.Y.C.R.R. § 202.8-b, that the foregoing
document complies with the applicable word count limit. The total number of words in this
document, inclusive of point headings and footnotes and exclusive of any caption, table of
contents, table of authorities and signature block is 2,554.
Dated: April 12, 2024
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412386\4890-8325-1892\
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Preview
FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 STATE OF NEW YORK SUPREME COURT COUNTY OF NASSAU CII PASSING LANE, LP, Plaintiff, -against- Hon. James P. McCormack WILLIAM PENN LIFE INSURANCE COMPANY OF ATTORNEY AFFIRMATION NEW YORK, Defendant. Index No. 602940/2022 WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Defendant and Interpleader Plaintiff, -against- GEORGE T. BURKE, ANN CACCIA, MICHELLE GINSBERG, ROBERT MCGRATH, and WILMINGTON TRUST N.A., CII PASSING LANE, LP, LINDA DALLER, ZACHARY GINSBERG, KEVIN GINSBERG, AND JOSHUA GINSBERG, Interpleader Defendants. KELLY S. FOSS, an attorney duly admitted to practice law before the Courts of this State, affirms the following under penalty of perjury: 1. I am an attorney and a member of the firm Harris Beach PLLC, attorneys for Plaintiff CII Passing Lane, LP (“Passing Lane”), which is also an Interpleader Defendant, as well as for Interpleader Defendant Wilmington Trust, N.A. (“Wilmington Trust”). As such, I am fully familiar with the facts and circumstances of this case. 1 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 2. I submit this affirmation in support of Passing Lane and Wilmington Trust’s motion for severance and entry of judgment pursuant to CPLR 603, 3212(e)(1), and 5012. As discussed further below, counsel for William Penn Life Insurance Company of New York (“William Penn”) has repeatedly stated that William Penn will not pay the damages awarded by this Court on partial summary judgment until such award is a reduced to a judgment. Accordingly, Passing Lane and Wilmington Trust bring this motion to sever the relief that has been fully adjudicated by this Court so that a judgment can be entered for the same. 3. The purpose of this affirmation is to supply facts and documents relevant to this motion. Pursuant to CPLR 2214(c), all documents identified by NYSCEF docket number are hereby incorporated by reference. The legal arguments of Passing Lane and Wilmington Trust are set forth in the accompanying joint memoranda of law, and will not be repeated here. Procedural History – Relevant Pleadings 4. Passing Lane commenced this action on March 9, 2022, seeking to recover the proceeds from the policy insuring the life of Mitchell Hersh (the “Policy”) as well as attorneys’ fees as a result of William Penn’s breach of the Policy by failing to timely pay out the Policy proceeds to the record beneficiary (Doc. 1). In its complaint, Passing Lane also asserted alternative causes of action, including promissory estoppel, negligent misrepresentation, and equitable estoppel based upon William Penn’s prior representations that the Policy was not the subject of any assignments, and declaratory judgment and unjust enrichment (id.). 5. After William Penn answered (Doc. 3), Passing Lane filed an amended complaint as of right (Doc. 5). 6. On June 2, 2022, William Penn filed its Answer to Passing Lane’s Amended Complaint (Doc. 6). 2 2 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 7. Approximately six months later, on December 9, 2022, William Penn filed, under the same index number, a Defensive Interpleader Complaint (Doc. 52). Two months later, on February 7, 2023, William Penn filed an Amended Defensive Interpleader Complaint, naming multiple Interpleader Defendants, including both Passing Lane and Wilmington Trust (Docs. 77, 78, 79, 80, 81, 82, 83, 84, and 85). 8. On February 27, 2023, Passing Lane and Wilmington Trust filed their Answers to the Amended Interpleader Complaint (Docs. 91, 94). 9. In its Answer, Passing Lane also asserted a counterclaim against William Penn reasserting, for the avoidance of doubt, Passing Lane’s demand for consequential damages based upon William Penn’s failure to timely pay out the Policy proceeds (Doc. 91). 10. Passing Lane further asserted a counterclaim against William Penn and a crossclaim against all interpleader defendants seeking a declaration that Passing Lane was entitled to the Policy proceeds and a protected purchaser under Article 8 of the Uniform Commercial Code (“UCC”) (Docs. 91, 92, 93). Passing Lane also asserted an affirmative defense under Article 8 of the UCC (Doc. 91). 11. In its Answer, Wilmington Trust asserted an affirmative defense under Article 8 of the UCC (Doc. 94). 12. Interpleader Defendants Michelle Ginsberg, Zachary Ginsberg, Kevin Ginsberg, and Joshua Ginsberg (the “Ginsbergs”) filed an Answer to the Amended Interpleader Complaint, dated February 10, 2023, and asserted counterclaims against William Penn, seeking a portion of the Policy proceeds under a theory of breach of contract as well as a declaration that the Ginsbergs have superior rights under the Policy and are therefore entitled to payment of Policy proceeds in the amount of $200,000.00 (Doc. 90). 3 3 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 13. Interpleader Defendants George Burke and Linda Daller (“Burke and Daller”) filed an Answer to the Amended Interpleader Complaint, dated February 27, 2023, and asserted counterclaims against William Penn seeking a portion of the Policy proceeds under a theory of breach of contract, a declaration that Burke and Daller have superior rights under the Policy and Burke and Daller are therefore entitled to payment of Policy proceeds in the amount of $410,000.00, and alternatively seeking monetary damages against William Penn for negligence in connection with its handling of Burke’s collateral assignment (Doc. 96). 14. Interpleader Defendant Robert McGrath (“McGrath”) filed an Answer to the Amended Interpleader Complaint, dated March 14, 2023, and asserted counterclaims against William Penn and crossclaims against Passing Lane seeking a portion of the Policy proceeds under a theory of breach of contract, a declaration that McGrath is entitled to payment of policy proceeds in the amount of $225,000.00, and alternatively seeking monetary damages from William Penn under a theory of negligence (Doc. 102). 15. Interpleader Defendant Ann Caccia was served (Doc. 108), but did not appear. 16. Passing Lane and Wilmington Trust filed replies to each of the counterclaims and cross claims asserted by the other Interpleader Defendants (Docs. 97, 98, 99, 100, 103, 104, 105, 106, 111, 112, 113, 114). In those replies, both Passing Lane and Wilmington Trust asserted (among other things) affirmative defenses under Article 8 of the UCC. Procedural History – Summary Judgment 17. Passing Lane moved for partial summary judgment pursuant to CPLR 3212 and for default judgment against Ann Caccia pursuant to CPLR 3215 (Docs. 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, and 186). On its motion, Passing 4 4 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 Lane sought, in pertinent part, summary judgment on the portion of its first cause of action for breach of contract and damages in the amount of $862,500.00, plus 1.5% interest running on that principal amount through the date of decision, plus $31,260.86 in interest still due and owing on William Penn’s partial payment of $2,137,500.00 made on January 6, 2023 (see id.). Passing Lane further sought on its motion for partial summary judgment a declaration that Passing Lane (1) is a protected purchaser under Article 8 of the UCC; (2) acquired its security entitlement in the Policy free of any adverse and/or competing claims to the Policy or its proceeds; and (3) is entitled to recover, through its securities intermediary, the remainder of the Policy proceeds free of adverse claims (see id.). Passing Lane also sought dismissal of the aforementioned counterclaims and crossclaims asserted by the Ginsbergs, Burke and Daller, and McGrath to the extent those Interpleader Defendants sought to assert a right to the Policy proceeds (see id.). 18. Wilmington Trust moved for partial summary judgment pursuant to CPLR 3212 and default judgment against Ann Caccia pursuant to CPLR 3215 (see Docs. 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 186, 187, 188, and 189). On its motion, Wilmington Trust sought a declaration that it is a protected purchaser and protected securities intermediary under Article 8 of the UCC, and that Wilmington Trust therefore (1) received the Policy free from adverse claims; and (2) is protected against adverse claims with respect to any Policy proceeds it received or receives in its role as securities intermediary (see id.). Wilmington Trust also sought dismissal of the counterclaims and crossclaims asserted by the Ginsbergs, Burke and Daller, and McGrath insofar as those claimants sought to assert a right to the Policy proceeds (see id.). 5 5 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 19. Neither Passing Lane’s nor Wilmington Trust’s motions for partial summary judgment sought adjudication of any other claims asserted by the Interpleader Defendants against William Penn (Doc. 186 [noting “the other Interpleader Defendants [would be free] to pursue any remaining claims for damages—e.g., for negligent processing of their collateral assignments— against William Penn” following the adjudication of Passing Lane’s motion for partial summary judgment]; 189 [same for Wilmington Trust’s motion for partial summary judgment]). Nor did Passing Lane seek on its motion for partial summary judgment resolution of its demand for consequential damages for bad faith delay, expressly leaving that issue along with any other claims which were not the subject of the motion to be decided at trial (Doc. 149, n. 1). 20. William Penn opposed the respective motions filed by Passing Lane and Wilmington Trust (Docs. 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 209, and 210). William Penn did not file any summary judgment motion by the deadline for dispositive motions in this action. 21. Burke and Daller opposed the respective motions filed by Passing Lane and Wilmington Trust, and also cross-moved for summary judgment (Docs. 203 and 208). In their cross-motion, Burke and Daller sought a declaration that (1) the sale of the Policy on the secondary market was void ab initio; and (2) Burke and Daller were entitled to $410,000.00 in Policy proceeds (see id.). Burke and Daller also sought dismissal of Passing Lane’s amended complaint (see id.). 22. McGrath opposed the respective motions filed by Passing Lane and Wilmington Trust (Docs. 204 and 205). McGrath did not file any summary judgment motion by the deadline for dispositive motions in this action. 6 6 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 23. The Ginsbergs opposed the respective motions filed by Passing Lane and Wilmington Trust (Doc. 207). The Ginsbergs did not file any summary judgment motion by the deadline for dispositive motions in this action. 24. Passing Lane filed reply papers in further support of its motion for summary judgment and default judgment and in opposition to the cross-motion filed by Burke and Daller (Docs. 211 and 212). 25. Wilmington Trust filed reply papers in further support of its motion for summary judgment and default judgment and in opposition to the cross-motion filed by Burke and Daller (Docs. 211, 212, and 213). 26. Burke and Daller filed reply papers in further support of their cross-motion for summary judgment (Docs. 214 and 215). 27. This Court issued a Decision and Order dated February 16, 2024 and entered on February 20, 2024 (see Doc. 216), granting in its entirety Passing Lane’s motion (Motion Seq. 3), granting in its entirety Wilmington Trust’s motion (Motion Seq. 4), and denying in its entirety Daller and Burke’s cross motion (Motion Seq. 5). Specifically, this Court: a. Granted Passing Lane summary judgment on its first cause of action against William Penn for breach of contract and awarded compensatory damages in the amount of $862,500.00, plus 1.5% interest, plus $31,260.86 in interest due and owing on the January 6, 2023 partial payment1; 1 The total amount owed is $934,900.48, which is comprised of the following: $862,500.00 (unpaid portion of the Policy proceeds), plus $41,139.62 (1.5% interest running from June 8, 2021, the date of the insured’s death, to February 20, 2024, the date the summary judgment decision was entered), plus $31,260.86 (1.5% interest due and owing on William Penn’s partial payment of 2,137,500.00 made on January 6, 2023). To be clear, this amount only encapsulates compensatory damages stemming from Passing Lane’s breach of contract claim. Passing Lane did not move for summary judgement on, and specifically reserved the right to seek, consequential damages, under Passing Lane’s breach of contract claim for William Penn’s bad faith delay in paying the undisputed portion of the policy proceeds and commencing the interpleader action. 7 7 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 b. Found that Passing Lane is entitled to a declaratory judgment that it is a protected purchaser under Article 8 of the UCC; c. Found that Passing Lane is entitled to a declaratory judgment that it acquired its security entitlement in the Policy free of any adverse and/or competing claims to the Policy or its proceeds; d. Found that Passing Lane is entitled to a declaratory judgment that it is entitled to recover, through its securities intermediary, the remainder of the Policy proceeds free of adverse claims; e. Found that Wilmington Trust is entitled to a declaratory judgment that it is a protected purchaser and protected securities intermediary under Article 8 of the UCC; f. Found that Wilmington Trust is entitled to a declaratory judgment that it received the Policy free from adverse claims; g. Found that Wilmington Trust is entitled to a declaratory judgment that it is protected against adverse claims with respect to any Policy proceeds it received or receives in its role as securities intermediary; h. Dismissed the Ginsbergs’ counterclaim against William Penn seeking a portion of the Policy proceeds under a theory of breach of contract; i. Dismissed the Ginsberg’s counterclaim seeking a declaration that the Ginsbergs have superior rights under the Policy and are therefore entitled to a portion of the Policy proceeds; j. Dismissed Burke and Daller’s counterclaim against William Penn seeking a portion of the Policy proceeds under a theory of breach of contract; 8 8 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 k. Dismissed Burke and Daller’s counterclaim seeking a declaration that Burke and Daller have superior rights under the Policy and Burke and Daller are therefore entitled to a portion of the Policy proceeds; l. Dismissed McGrath’s counterclaim against William Penn and crossclaim against Passing Lane seeking a portion of the Policy proceeds under a theory of breach of contract; m. Dismissed McGrath’s counterclaim seeking a declaration that McGrath is entitled a portion of the Policy proceeds; and n. Granted default judgment against Ann Caccia. (Docs. 148 and 187 [Passing Lane’s and Wilmington Trust’s respective notices of motion, setting forth specific relief sought—and ultimately granted by this Court—on partial summary judgment]). 28. Following this Court’s decision and order on partial summary judgment, William Penn and each of the adverse claimants – Burke and Daller, McGrath, and the Ginsbergs – filed notices of appeal (Docs. 224, 225, 226, and 227). 29. Since issuance of this Court’s decision and order awarding partial summary judgment, counsel for William Penn has communicated to me on multiple occasions that William Penn will not pay the compensatory damages awarded by this Court until such damages award is reduced to a judgment. Consistent with the position it has taken, within its notice of appeal, William Penn states that “Plaintiffs have not submitted a judgment to address the monetary and non monetary provisions of the order” (Doc. 226, p. 8). Counsel for William Penn has also repeatedly stated, over the past few months, its view that the decision and order finally adjudicated all claims and defenses in this matter, and has insisted that Passing Lane reduce the order to a 9 9 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 judgment. Given that this Court granted Passing Lane and Wilmington Trust’s motions for partial summary judgment, Passing Lane and Wilmington Trust disagree that the decision and order adjudicated all claims in the action. 30. Accordingly, for the avoidance of doubt, and as urged by William Penn, Passing Lane and Wilmington Trust bring this motion for severance and to reduce to judgment those issues which this Court has already decided, while leaving the remaining issues for trial. 31. For the reasons set forth above and in the accompanying memorandum of law, Passing Lane and Wilmington Trust respectfully requests that this Court grant the relief requested in the notice of motion. 32. For the Court’s convenience, attached as Exhibit 1 is a proposed order of severance. Kelly S. Foss 10 10 of 11 FILED: NASSAU COUNTY CLERK 04/12/2024 05:01 PM INDEX NO. 602940/2022 NYSCEF DOC. NO. 229 RECEIVED NYSCEF: 04/12/2024 CERTIFICATION PURSUANT TO 22 N.Y.C.R.R. § 202.8-b The filing attorney hereby certifies, pursuant to 22 N.Y.C.R.R. § 202.8-b, that the foregoing document complies with the applicable word count limit. The total number of words in this document, inclusive of point headings and footnotes and exclusive of any caption, table of contents, table of authorities and signature block is 2,554. Dated: April 12, 2024 11 412386\4890-8325-1892\ 11 of 11